Things to look for in the upcoming policy package on siting and permitting
Problems with H.3215 An Act to expedite permitting for electric decarbonization infrastructure projects
(A bill written largely by National Grid)
It creates an entire new office, rendering the Energy Facility Siting Board (EFSB) mostly obsolete. The EFSB would only oversee fossil fuel projects.
This bill removes all local and state permitting into this one office with one decision-maker (the Director). There would no longer be local permits like Conservation Commissions, Zoning Boards, or state permits through agencies like the Dept. of Environmental Protection and Office of Coastal Zone Management.
In this new office, the single consolidated permit would be approved by ONE person, the Director.
Proposed projects would be automatically approved if there is no decision within 6 months from the Director.
The only commitments to environmental justice are light community engagement.
All of these things combined will result in more communities fighting projects that are poorly placed and permitted, wasting time and money. And without addressing systemic racism and classism, this bill will likely result in low-income and communities of color being targeted for more industrial projects in already overly polluted neighborhoods.
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Highlights of S.2113 / H.3187 An Act relative to energy facilities siting improvement to address environmental justice, climate, and public health (A bill written by the MA Environmental Justice Legislative Table)
This bill would improve the existing Energy Facilities Siting Board to include public health, climate change and environmental justice in their decision-making.
This bill would require early and robust community engagement, avoiding pitfalls and greasing the skids for easier siting and permitting.
This bill would require a cumulative impacts assessment- allowing the public to see how pollution burdened the neighborhood is around a proposed site.
This bill would require when there are negative impacts to an already burdened community- that the EFSB deny new fossil fuel proposals and they may deny a renewable project on this criteria.
All of these things combined, will result in more communities being engaged, projects being well placed and faster permitting, saving time and money. It will also heal the history of targeting low-income and communities of color for industrial projects, with more equitable distribution of our energy infrastructure.
Detailed Comparison of Madaro/DiDomenico Siting Improvement Bill (S.2113 / H.3187) to Roy Expedite Siting Bill (H.3215)
Credit to Conservation Law Foundation (except for the blue text)
Topic | EJ Goal | EJ TABLE Siting Improvement Bill S.2113 / H.3187 (Our priority bill) | Expedite Siting Bill (Chair Roy Bill) (H.3215) |
Preliminary Project Statement
| Early transparency Better upfront community input is found to move projects faster. | The MA Bill requires a preliminary project statement that discusses need, public health, environmental, climate risks, and benefits for environmental justice populations located within 5 miles of the facility by inserting new language in Section 69J1/4 of Chapter 164.
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X
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Siting entity mandate | Reliable energy supply with consideration of burdens on residents | Amends Section 69H of Chapter 164 and expands the Board’s mandate by requiring that the board provide “reliable energy supply for the commonwealth with a minimum impact on the environment and public health, and with a minimum impact on the overall wellbeing of residents located within two miles of the project at the lowest possible cost after these impacts are considered. | The Bill proposes Decarbonization Infrastructure Permitting Office within the Executive Office of Energy and Environmental Affairs that operates as a state agency separate from the Energy Facilities Siting Board.
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Board/Directors | Increase public membership and ensure staff have expertise on environmental justice. | Increases the Siting Board’s number of public members from 3 to 5 | Requires that the staff and director have expertise in electric sector decarbonization, permitting requirements, technical and engineering expertise, and other such areas necessary.
The Director will have the final discretion over the terms and conditions of the permit.
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Statements of Support/EJ Impact Statement | Ensure environmental justice impact statements are included. | Amends Section 69J1/4 of Chapter 164 by requiring an environmental justice impact statement, as well as statements indicating impacts of the facility with respect to mitigating climate change, plans for the facility to adapt to a changing climate, public health impacts of the proposed facility, and a cumulative impact assessment that considers exposure, public health, or environmental risks | In the application process, the applicant must include documentation that MEPA requirements for advance notice to EJ populations have been met, including an outreach plan.
(Does not require an environmental justice impact statement, but it does require an outreach plan for engagement with EJ populations during the application process)
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Approval Process | Ensure permit approvals do not result in burdens that outweigh benefits of the facility. (Heal the impacts of historic environmental racism and classism) | The Board can approve a petition to construct a facility if it determines that the environmental justice impact statement demonstrates a finding of environmental and energy benefits to the impacted environmental justice populations without any environmental or energy burdens; the cumulative impact assessment demonstrates that there is no adverse public health, environmental, or climate impact to the impacted communities (as well as prior requirements). | The Director will also have the final discretion over the terms and conditions of the permit based on the best management practices identified in the permit.
Within sixty days, a public comment period commences.
A public hearing is required if the project is proposed within 1-5 miles of an EJ population.
Within 30 days of the public comment period, the Office may request additional information.
No later than six months from the date of public notice, the office must issue a consolidated permit approving (or approving with special conditions) a qualifying project.
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Consider Alternative Sites | Review alternative sites to minimize impacts to environmental justice communities. | Allows the board, at its discretion, to consider alternative sites for a generating facility “if the applicant or resident living within two miles of the facility requests such an evaluation, or if such an evaluation is an efficient method of administering an alternative site review required by another state or local agency. | X
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Denial Power | Authority to deny facility if it contributes to adverse environmental stressors on EJ communities. (Heal the impacts of historic environmental racism and classism) | Grants the Board power to deny a petition for a new facility or the expansion of an existing facility if the facility’s approval would “together with other environmental, climate, or public health stressors affecting the environmental justice population, cause or contribute to adverse cumulative environmental, climate, or public health stressors in the overburdened community that are higher than those borne by other communities within the Commonwealth. | No city or town can have authority over any qualifying project or enact any bylaw, ordinance, or regulation with respect to the qualifying projects.
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Expedited Process | Ensure review of fossil fuel facilities takes the longest. | Amends Section 69J1/4 and grants the Board the authority to adopt regulations that establish timelines for reviewing petitions, with fossil fuel generating facilities to have the longest period of time for going through an adjudicatory process and renewable energy facilities to have the shortest period of permitting review. | Expedites the process by having the applicant submit a single application which lists all substantive local and state permits that the applicant would have otherwise been required to obtain, a description of the project, an explanation, proof of consultation with the host community, and documentation that all MEPA requirements have been met, including advance notification to EJ populations.
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Public Hearing | Ensure public hearing contains adequate language access. | Requires the Board to hold a public hearing that ensures adequate language access, “including simultaneous language interpretation in the languages spoken by a significant proportion of the population in the neighborhood of the proposed facility, that allows residents and other attendees to understand others’ comments and that allows members of the department to understand speakers’ comments. | Requires the Office to hold a public hearing if the project is located within one to five miles of an environmental justice population.
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Create a Permitting Office | X
| X
(The Bill amends EFSB’s current structure but does not propose a new office. ) | The Bill proposes Decarbonization Infrastructure Permitting Office within the Executive Office of Energy and Environmental Affairs that operates as a state agency. |
Staff Expertise | Ensure staff contain expertise on environmental justice. | The board shall be composed of the secretary of energy and environmental affairs, who shall serve as chairperson, the secretary of housing and economic development, the commissioner of the department of environmental protection, the commissioner of the division of energy resources, 2 commissioners of the commonwealth utilities commission, or the designees of any of the foregoing, and 5 public members to be appointed by the governor for a term coterminous with that of the governor, 1 of whom shall be experienced in environmental issues, 1 of whom shall be experienced in labor issues, 1 of whom shall be experienced in energy issues, and 2 of whom shall be experienced in community issues associated with the siting of energy facilities with at least of one these members who resides in an environmental justice population and has experience with environmental justice principles and at least one of these members who is a tribal representative or representative of an Indigenous organization. | Requires that the staff and director have expertise in electric sector decarbonization, permitting requirements, technical and engineering expertise, and other such areas necessary.
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Funding/Fees | N/A | X | Establishes fees for reviewing applications for a consolidated permit and a separate fund.
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Office Duties | X
| Maintains authority within the EFSB. | Charges the office with developing and promulgating rules and regulations for permitted qualifying projects within one year of enactment, as well as best management practices, criteria for reviewing the permits under specific timelines.
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Consolidated Permit | X
| X
EFSB authorized to override state and local permitting in Certificate of Environmental Impact and Public Interest. | The Office will issue a consolidated permit to encompass all local and state authorizations necessary for the project.
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Best Practices | Ensure impacts on the well-being of residents are minimal and at the lowest possible cost. | Amends Section 69H of Chapter 164 and expands the Board’s mandate by requiring that the board provide “reliable energy supply for the commonwealth with a minimum impact on the environment and public health, and with a minimum impact on the overall wellbeing of residents located within two miles of the project at the lowest possible cost after these impacts are considered. | The conditions should be designed to “…, avoid, minimize, or mitigate, to the maximum extent practicable, any potential significant adverse environmental impacts caused or contributed to by the siting, design, construction, upgrades to, or operation of qualifying projects.”
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Exclusive Authority | Maintain permitting authority within EFSB. | Maintains authority within EFSB. | The (new) Office has exclusive authority over qualifying projects.
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Exemptions | X
| X
| Exempts the section to normal repairs/maintenance, projects in or over the territorial sea of the Commonwealth, and generation facilities.
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Application Process | Ensure application process is thorough and complete to minimize impacts on environmental justice communities. | Expands application process by requiring an EJ impact statement, impacts of the facility with respect to mitigating climate change, plans for the facility to adapt to a changing climate, a cumulative impact assessment, and public health impacts of the proposed facility. | Requires a description of the project, an explanation, “proof of consultation with the host community,” documentation MEPA requirements, including notice to environmental justice populations” have been met, an outreach plan, and an application fee.
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Comment Period | Maintain comment period within Siting Board. | Maintains comment period. | A 60-day comment period based on notification of the application.
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Site Visit | X
| X | A site visit may be required. |
Timing | Ensure review of fossil fuel facilities takes the longest, while renewable energy has the shortest period for the adjudicatory process. | The Siting Board shall promulgate regulations that establish timelines for reviewing a petition for a certificate of public interest such that: (i) a generating facility that is powered by fossil fuels has the longest period of time for going through the adjudicatory process; (ii) an energy storage system or ancillary structure has a shorter period of time for going through the adjudicatory process; and (iii) a generating facility that is powered by renewable energy has the shortest period of time for going through the adjudicatory process | The office must issue the permit no later than 6 months from the date of public notice. |
Amendments | Allow amended applications. | Maintains that an application can submit an amended petition within six months in the event of a rejection or conditioned approval. | X
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Appeal Process/Judicial Review | X
| X
Currently, Parties can appeal EFSB decisions to the SJC.
| Contains an expedited appeals process limited to those filed within 30 days of permit issuance or denial.
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Oil Facilities | Require ENF/EIR for oil facilities with adequate language translations. | Requires that an applicant file an environmental notification form or environmental impact report prior to constructing an oil facility or a facility that refines oil and share the statement with the director of Environmental Justice at the EEA, the EFSB, and post it to a public website, translated into multiple language. | X
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Load Forecast | Require energy load forecast data to ensure project is needed for reliability. | Requires a project proponent to disclose energy load forecast data that demonstrates the need for the facility to ensure reliability. | X
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Definition for Generating Facility | Adjust generating language definition. | Amends the definition for “generating facility” to mean generating unit designed or capable of operating at 35 megawatts (compared to 100 megawatts in the current definition. | X |
Certificate of Environmental Impact and Public Interest | Ensure facilities that receive Certificate of Environmental Impact and Public Interest do not result in an increase in greenhouse gas emissions. | Amends the requirements for issuing a Certificate of Environmental Impact and Public Interest by requiring that the facility not “create greenhouse gas emissions that would cause or contribute to the Commonwealth not meeting its climate mandates under chapter 21N or environmental burdens on an environmental justice population. | X |